Major Battles Loom Over Job Bias Bills

Two separate actions Wednesday seemed to set the stage for a major legislative battle over job discrimination and affirmative action.

A bipartisan coalition in Congress led by Sen. Edward M. Kennedy (D-Mass.) and Sen. James M. Jeffords (R-Vt.) introduced a bill to reverse a series of 1989 Supreme Court decisions involving job bias against minorities and women.

Hours after the coalition held a press conference, Atty. Gen. Dick Thornburgh announced that, under the direction of President Bush, the Justice Department is drafting legislation “aimed at strengthening laws to combat employment discrimination.”

However, the department said it would confine its legislation to two high court decisions, saying it considered several others to involve “racial quotas.”

“The Administration’s firm commitment to eliminate employment discrimination also means that we continue to oppose racial quotas,” Thornburgh said. “Discrimination is wrong no matter at whom it is directed.”

That stance is “very disappointing,” said Ralph G. Neas, executive director of the Leadership Conference on Civil Rights, an umbrella group of 185 national organizations. The Administration’s proposed bill “falls far short of correcting the serious problems created by the decisions,” he said.

Advocates of the legislation introduced in Congress said it would not change the law regarding affirmative action and therefore does not mandate any form of quotas.

But the Administration’s announcement challenged that interpretation.

For example, the bill introduced in Congress attempts to undo a Supreme Court decision that the plaintiff has the burden of proving that an employer had no business reasons for a practice with discriminatory effects (Wards Cove Packing Co. vs. Atonio).

The bill would also seek to change a Supreme Court decision that court-approved affirmative action plans can be challenged as reverse discrimination, even years after they have been adopted, by groups that are not party to the plans (Martin vs. Wilks). The bill would limit the time for challenging court-approved plans for remedying past racial discrimination, while guaranteeing that people adversely affected would have a reasonable opportunity to contest the order.

The Justice Department showed a sharply contrasting view of the impact of those cases, saying they “are decisions rooted in the (Supreme) court’s opposition to racial quotas, which we share.”

“We urged the court to reach the decisions it did in (those) cases; we agree with them and will oppose any legislation that seeks to overturn them,” Thornburgh said.

The bill in Congress and the legislation to be drafted by the Justice Department seek to remedy two other Supreme Court decisions. One held that a 1866 law barring intentional race discrimination in contracts does not forbid racial harassment on the job and other forms of bias in the application of contracts.

In the other case, the Supreme Court ruled that discriminatory seniority systems had to be challenged when they were adopted even if, for example, the victims were not employees at that time.

But, although the Justice Department and the coalition that introduced the bill in Congress seem to agree on those two cases, they are diametrically opposed in the other two cases.

In the Senate, committee hearings were set for March, with passage anticipated as early as April or May. Hearings on a companion bill in the House were scheduled later this month.